' This Constitutional petition impuging the vices of the orders passed by respondent No,1 i,e, Registrar of Trade Unions, Central Division, Karachi, culminating in cancellation of the registration of petitioner Union has been referred to me as a third Judge in the event of difference of opinion between two Honourable Judges of the Division Bench.
2. In his elaborate judgment prepared as far back as 6-2-1996 Mr. Justice Wajihuddin Ahmed, senior Judge on the Bench (as his lordship then was) expressed the view that impugned order was passed without lawful authority and deserved to be set aside whereas Mr. Justice Agha Saifuddin (since retired) in his dissenting judgment held otherwise for the reason that this aspect of the case requires investigation into disputed question of facts. Another ground weighing with the learned Judge appears to be that in view of provision of appeal as laid down in section 11 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the "Ordinance") invocation of writ jurisdiction by the petitioner was not permissible.
3. Since the facts leading to the cancellation of the registration of the petitioner Union have been already incorporated in the aforesaid judgments, I am not persuaded to reiterate the same for the expression of my opinion as a referee Judge. For the purpose of answering the questions involved in this petition, it may not be out of context to reproduce the provisions contained in section 10 of the Ordinance which reads as follows: "10. Cancellation of registration.--(1) The registration of a trade union shall be cancelled if the labour Court so directs upon a complaint in writing made by the Registrar that, the trade union has--
(i) contravened (or has been registered in contravention of) any of the provisions of this Ordinance or the rules; or
(ii) contravened any of the provisions of its constitution; or
(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules.
(2) Where any person who is disqualified under section 7-A from being elected as, or from being, an officer of a trade union is elected as an officer of a registered trade union, the registration of that union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs.
(3) The registration of a trade union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist:"
4. Analysis of this provision of law tends to show that primarily the function and authority of cancellation of registration of a trade union is conferred by law on the Labour Court constituted under section 35 of the Ordinance. It stipulates that this penal action resulting in complete paralysis of the trade union activities may be ordered by the Labour Court in the event of such union being guilty of contravention or having being registered in contravention of any of the provisions of the Ordinance or the rules, or such union having contravened any of the provisions of its constitution or such union having made in its constitution any provision which may be found inconsistent with the Ordinance or the rules framed thereunder. The second category of violation on which the aforesaid punitive action may be justifiably directed by the labour Court. Is in the event of any person disqualified under section 7-A of the Ordinance from being elected as, or from being, an officer of trade union is elected as an officer of a registered trade union. In any event Labour Court can act only upon a complaint in writing made in this behalf by the Registrar of Trade Unions. It is only in subsection (3) of the above said provision that the Registrar is authorised to cancel the registration of a trade union if after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist. Admittedly the impugned order was passed by the respondent No,1 under the last mentioned provision of law which has been seriously questioned by the petitioner union on the grounds, inter alia, firstly that the Registrar had no authority to invoke this jurisdiction and secondly that no inquiry as contemplated by law was ever initiated by the said respondent who acted without jurisdiction or in a manner which can hardly be interpreted as quasi judicial much less in due process of law. It may be pertinent to observe that in terms of subsections (1) and (2) of section 10 of the Ordinance, status of the Registrar is that of a prosecutor whereas under the last mentioned subsection he appears to enjoy executive functions which in all propriety must be exercised fairly, reasonably, honestly and in an equitable manner.
5. In the case in hand, it appears that respondent No,1 invoked the authority conferred upon him on the premise that the petitioner union had ceased to exist. As to the nature of inquiry before depriving the petitioner trade union of its Constitutional right as to freedom of association and engagement in lawful trade union activities, contemplated inquiry conducted in this context appears to be that the said respondent issued a show-cause notice for non-submission of annual returns from the years 1987 to 1991 and for not holding election of office-bearers of the Union. This notice according to the contesting respondent was followed by another notice dated 16-6-1993 but without any response. It is said, both the notices were dispatched by registered post. As per averments in the parawise comments, two more notices in identical terms were issued to the petitioner by registered post on 13-3-1995 and 25-10-1995 which remained unheeded. A photo copy of an envelope purportedly containing a registered letter dated 17-12-1995 sent by Directorate of Labour Central Division Karachi to the petitioner union has been placed on record bearing an endorsement on its reverse "left w/o address. Sd/ 18/12". The stand taken by the petitioner union in its prompt and timely affidavit in rejoinder is categorical assertion that no inquiry had been held against the petitioner nor any show-cause notice or any letter in this connection. Was received by any officer of the union. Indeed respondent No,1 has not bothered to place any other material on the record justifying the most harsh and penal action taken against the union assuming that it had ceased to exist. It appears that the controversy arose when on 13-12-1995 petitioner union approached the Registrar of Trade Unions with an application under section 22 of the Ordinance requesting for holding a referendum with assertion that it has membership of more than one-third employees of the respondent KPT establishment. Instead of calling upon the petitioner to appear in person and to prove its existence or otherwise, respondent No,1 by his letter dated 17-12-1995 purportedly called upon four other unions to indicate whether such unions desired to contest in the secret balloi for determination of Collective Bargaining Agent for the workmen employed in KPT. A copy of this letter Annexure ''G' was appended to the petition and called into question for the reason that it was ante-dated and issued illegally with a view to deprive the petitioner union from taking part in the election of Collective Bargaining Agent. It is surprising that on the part of KPT establishment, its Manager Industrial Relations, Establishment and Welfare by letter dated 21-12- 1995 informed the petitioner union that its registration had been cancelled by respondent No,1 in terms of section 10 of the Ordinance vide order dated 5-12-1995. By this letter the management advised the petitioner union to refrain from canvassing in connection with referendum for the purpose of determination of Collective Bargaining Agent when the petitioner invoked the jurisdiction of this Court assailing the order of Registrar Trade Unions dated 5-12-1995 and the letter dated 17-12-1995 as illegal, without any lawful authority and of no legal effect. In my view, respondent No,1 appears to have acted in hot haste and on extraneous considerations by directing the cancellation of registration of the union without proper inquiry and without affording an opportunity of hearing to the petitioner. Exercise of authority by respondent No,1 in the given circumstances, thus, can hardly be endorsed much less judicially approved. Indeed much more was required of the Registrar of Trade Unions to ascertain the ground realities rather than to base his findings on the absence of any reply to the show-cause notices. In any event, non-submission of annual returns for a period over 5 years and not holding periodical elections of the union are circumstances which prima facie contravene the statutory provisions of the Ordinance. A just, fair and proper course in the circumstances was to lodge a complaint before the labour Court rather than to invoke and exercise the authority vested in Executive in a summary and slipshod manner. I am, therefore, of the definite view that the impugned order was passed without any lawful authority and it deserves to be struck down.
6. Adverting to the question of law as to the exercise of authority by the Registrar vis-a-vis his position as complainant in terms of section 10 of the Ordinance, I am in respectful agreement with the view expressed in. Holiday Inn Workers Union v. Registrar of Trade Unions (1992 PLC 23) and Pakistan Glass Industries Labour Welfare Union v. Presiding Officer, Labour Court No,VI, Hyderabad (1980 PLC 9). In the first case the view expressed was that in case of registration of trade union in contravention of law or otherwise mandatory requirements fixed by Ordinance are that Registrar could only file a complaint before relevant Labour Court soliciting cancellation of registration. In the second case it was held that adverse action against the trade union could not be taken under section 10(3) without notice and without holding inquiry whether union had ceased to exist. In the reported case there were two awards existing in favour of the union in respect of wages of workers not realized. In the present case it is evident from the record that the petitioner-union had taken part in two refrendums for the determination of Collective Bargaining Agent held in the years 1991 and 1993. The petitioner-union was active and alive to its lawful activities by moving the Registrar of Trade Unions on expiry of the terms of C.B.A. Union to make arrangements for determination of C.B.A. By way of refrendum. Simply because the petitioner-union did not respond to the show- cause notice issued by the Registrar, it cannot be inevitably presumed that the union had dissolved itself or it had ceased to exist: Any inference drawn against the Union by the respondent No,1 in this context on the face of record is apparently preposterous and not a prudent and lawful exercise of discretion.
7. There is another aspect of the case. Assuming for the sake of argument that the Registrar Trade Unions was right in assuming that the petitioner union had been guilty of not a submitting annual returns and not holding periodical elections of the Union, this may constitute a violation of the Ordinance and the Constitution of the Union itself for which only jurisdiction of the Labour Court could have been invoked by the Registrar and not to assume to himself the authority by way of cancelling the registration of the Union without any solid inquiry as to the non-existence of the Union.
8. Adverting to the preliminary legal objections raised by the respondent that the petitioner having not availed of adequate remedy of appeal under section 11 of the Ordinance could not invoke the Constitutional jurisdiction of this Court which ground heavily weighed with a member of the Bench, suffice it to observe that the impugned order being illegal and without jurisdiction passed under considerations other than those essentially required by the mandate of law, recourse to appellate forum was neither absolutely necessary nor called for. In any event perhaps even by filing such appeal the petitioner would not have succeeded in obtaining relief of stay of operation of the impugned orders. Even otherwise the provision relating to availment of adequate and alternate reniedy before invoking Constitutional jurisdiction of the Court is a rule of convenience and not a rule of law. Indeed there is no hard and fast rule that in each and every case a party must exhaust departmental remedies provided under the statute before approaching the High Court in its Writ jurisdiction. I am fortified in this view by Ali Muhammad v. Hussain Baldish (PLD 1976 SC 37) in which a Full Bench of the Supreme Court referred to the cases reported as Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104), Ch. Altaf Hussain and others v. The Chief Settlement Commissioner (PLD 1965 SC 68) and Syed Ali Abbas and others v. Vishan Singh (PLD 1967 SC 294).
Crux of the decisions appears to, be in favour of the proposition that where an authority has passed an order in excess of jurisdiction, the petitioner cannot be refused relief and penalised for not throwing himself again by way of review or revision, on the mercy of authorities who were responsible for such excess. A Full Bench of the Lahore High Court in Manzoor Ahmed Wattoo v.
Federation of Pakistan (PLD 1997 Lahore 38) endorsed the above view by holding that where it is shown that the impugned actions are unconstitutional or are violative of the fundamental/Constitutional rights, it becomes bounden duty of superior Courts to enforce the Constitution with its full might and majesty and in doing so Court should not hesitate to strike down impugned action/orders and to grant consequential relief flowing therefrom. Besides a Division Bench of Lahore High Court in Senator Gulzar Ahmed v. Punjab Cooperative Board 1998 CLC 50 ruled as under: "Availability of alternate remedy does not oust jurisdiction of High Court to entertain a writ petition.
It is one of the factors to be taken into consideration for regulation of discretion of High Court. If remedy provided by statute is equally efficacious and comprehensive, generally speaking High Court may refuse its interference. There are certain well-recognised exceptions to this general rule, one of which is that if impugned order suffers from illegality or error on the face of record, it may be struck down though petitioner has not availed of alternate remedy."
9. Reference to cases reported as Sher Muhammad v. Director-General of Pakistan, Telegraphs and Telephones Department (PLD 1979 Karachi 1) and Iqan Ahmed Khurrum v, Government of Pakistan (PLD 1979 Karachi 610) in the dissenting judgment in my humble view is hardly called for and least attracted in the peculiar circumstances of the case. Both the cases pertained to the grievance expressed by civil servants before the High Court involving exclusive jurisdiction of the Service Tribunal and bar of jurisdiction against High Court by reason of Article 212 of the Constitution. In this case the respondent had acted without jurisdiction perhaps under extraordinary bureaucratic pressure and undue interference in the discharge of his duties,
10. For the aforesaid facts and reasons I am of the considered view that the impugned orders suffer from patent illegality and excessive exercise of authority which must be struck down and the petition must succeed.